University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 7-26-2007 TENNESSEE DEPARTMENT OF CORRECTION, Department/, Petitioner, vs. CSGP-07-14DOYLE WITCHER, Grievant/, Respondent Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov
BEFORE THE TENNESSEE CIVIL SERVICE COMMISSION TENNESSEE DEPARTMENT ] OF CORRECTION, ] Department/Petitioner, ] ] vs. ] Docket No. 26.05-094764J ] (CSGP-07-14) DOYLE WITCHER, ] Grievant/Respondent. ] INITIAL ORDER This contested administrative case was heard on July 26, 2007, at the West Tennessee State Penitentiary, near Henning, Tennessee, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State, and sitting for the Civil Service Commission for the State of Tennessee. Mr. John Drummond, staff attorney for the Department of Correction, represented the Department/Petitioner. The Grievant/ Respondent, Doyle Witcher, appeared pro se. Upon conclusion of the hearing, the matter was taken under advisement pending submission of the parties Proposed Findings of Fact and Conclusions of Law. Those documents were filed by September 19, 2007, and the matter was declared ready for consideration. This contested administrative proceeding was a fifth-step disciplinary hearing convened at the Grievant s request, to consider the termination of his state employment by the Commissioner of the Department of Correction ( the Department ) for engaging in certain prohibited conduct, including (1) Gross misconduct... unbecoming an employee in the State service; (2) Violation of TDOC Policy & Procedures #302.08, Code of Conduct/Oath of Correctional Employee in State Service; and (3) Violation of Tennessee Code Annotated 39-16-201, Introduction or possession of weapons... into a penal institution where prisoners are quartered. Upon consideration of the evidence and arguments, and the entire record, it is concluded that the Grievant engaged in the prohibited conduct, as charged, and that the proper disciplinary sanction for those offenses is termination from state employment. This determination is based on the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT 1. The Grievant was employed by the State of Tennessee from March 1, 2004 until June 5, 2006, as a Correctional Officer at the West Tennessee State Penitentiary, near Henning, Tennessee. 2. The West Tennessee State Penitentiary ( WTSP ) is a correctional facility operated by the Tennessee Department of Correction, housing convicted felons with security classifications up to maximum security. 3. The warden at WTSP is Tony Parker, an experienced Department administrator, who began his career with the Department of Correction as a Correctional Officer in 1983, and progressed through the ranks to become an associate warden, then warden at another facility, before assuming the position of warden at WTSP in March 2006. 4. When he began his job as warden at WTSP, he did so with the knowledge that that facility had a bad reputation as far as contraband being introduced 1 into the institution. Warden Parker placed a high priority on keeping contraband, especially weapons, out of his facility. 5. On May 26, 2006, the Grievant arrived at WTSP to begin his shift as a Correctional Officer. To do so, he was required to enter through a checkpoint. Routinely, that would have required that he empty his pockets and pass through a metal detector; the contents of his pockets would have been passed through an x-ray machine. 6. However, on that date, under the supervision of Captain Kenneth Carol, a more thorough search was being conducted of all employees as they entered the prison, including hands-on, physical searches of persons and clothing, as well as all items being carried by them. Following the search parameters outlined by Captain Carol, employees were searched by Correctional Officers under his command, including Correctional Officer Roy Noojin. 1 Hearing Transcript: Page 76, Line 17. 2
7. When he arrived at the checkpoint, the Grievant was searched by Correctional Officer Roy Noojin. As recalled by Captain Carol, Mr. Witcher came in, took everything out of his pockets and things, and he came through the metal detector, didn t have any problem. He was frisked [sic] searched by Officer Noojin. Then he sat down - - I believe he sat down in a chair, removed his shoes. 2 8. When Officer Noojin initially examined the Grievant s shoe, he found nothing unusual. However, when he lifted the removable insole (or arch-support), he found an object that was hidden between the removable insole and the permanent insole. 9. When removed from the Grievant s shoe, Officer Noojin determined that it was a folding knife, which he believed to be contraband, and he immediately took it to Captain Carol for further action. 10. The object discovered in the Grievant s shoe may be more fully described as a folding knife, consisting of a plastic handle and a razor-sharp blade. Its overall length, when opened, is approximately 4 ¼ inches; the blade is approximately 2 inches long. It appears to be the functional equivalent of a box-cutter. The plastic handle is embossed with the name of a company that formerly employed the Grievant. 11. Like Officer Noojin, Captain Carol perceived the knife to be an item of contraband. After consulting with his superiors, Captain Carol instructed the Grievant to go home, and to return to the facility the following week to meet with the warden. 12. Upon is return the following week, he met with Warden Parker, who instituted disciplinary proceedings, alleging that the Grievant had introduced a knife, a deadly weapon, into the prison. Following a due process hearing on June 5, 2006, and a review of that decision by the Commissioner, the Grievant s employment with the State of Tennessee was terminated. 2 Hearing Transcript: Page 47, Line 16. 3
CONCLUSIONS OF LAW & ANALYSIS 1. The Tennessee Department of Correction is the Petitioner in this matter, the party that initiated the proceedings, and as such, is assigned the burden of proof. The burden of proof is the duty imposed upon a party to establish, by a preponderance of the evidence, that an allegation is true, or that an issue should be resolved in favor of that party. A preponderance of the evidence means the greater weight of the evidence, or the more probable conclusion, based on the evidence presented. The burden of proof is generally assigned to the party seeking to change the present state of affairs with regard to any issue. Rule 1360-4-1-.02(7), TENN. COMP. R. & REGS. In the instant case, that means that the Department of Correction must prove, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited for State employees, as described in Rule 1120-10-.06, TENN. COMP. R. & REGS., and that separation from state employment is the appropriate disciplinary response to his conduct. 2. The Rules of the Tennessee Department of Personnel, Disciplinary Action, Chapter 1120-10, TENN. COMP. R. & REGS, describe certain prohibited conduct for State employees that may result in disciplinary action being taken against them. As a State employee, the Grievant knew, or should have known, of the application of those Rules to his conduct. Those Rules contain the following provision: 1120-10-.06 EXAMPLES OF DISCIPLINARY OFFENSES. The following causes are examples of those considered for disciplinary action and should not be considered the only causes of action. * * * (8) Gross misconduct or conduct unbecoming an employee in the State service. * * * 3. Gross Misconduct, 3 is defined in Rule 1120-1-.01 (42), TENN. COMP. R. & REGS. as Any job related conduct which may subject an employee to criminal prosecution. [emphasis supplied]. The Department argued that the Grievant s conduct, taking a knife into the prison, could have subjected him to prosecution for violation of Tennessee Code 3 See, Rule 1120-10-.06(8), TENN. COMP. R. & REGS., Rules of the Tennessee Department of Personnel. 4
Annotated 39-16-201, Introduction or possession of weapons... into a penal institution where prisoners are quartered. That Code section provides that it is a felony to knowingly and with unlawful intent, take a weapon into a prison [TENN. CODE ANN. 39-16-201(b)(1)]; or, to knowingly possess a weapon while in a prison [TENN. CODE ANN. 39-16-201(b)(2)]. 4 The Grievant challenged both the Department s assertion that (1) the item was found in his shoe, and (2) that the seized item was a weapon, and therefore, contraband. 4. Officer Noojin testified that he found the knife in the Grievant s shoe, hidden between the permanent insole and the removable insole or arch support, during a random search of the Grievant s clothing when he arrived to begin his shift. Nothing in the record impeached that testimony, or otherwise legitimately called it into question. That evidence is sufficient to establish that the Grievant brought the knife onto the prison property. The Grievant failed to rebut any inferences that may be drawn from the presence of an item that was concealed in his clothing. 5. The Grievant next challenged the characterization of the item found in his shoe as a knife or a weapon. That portion of the State statutes dealing with weapons offenses, Tennessee Code Annotated 39-17-1301 defines the term Knife as follows: (7) Knife means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument. Similarly, the Code defines Deadly Weapon, in 39-11-106, as Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. When those statutory definitions are applied to the description of the item found in the Grievant s shoe, it is clear that the item seized from his shoe was both a knife and a weapon. That knife, found hidden in the Grievant s shoe, was fully capable of inflicting death or serious bodily injury by cutting another person. That determination brings the Grievant s actions squarely within the conduct prohibited by Tennessee Code 4 The printed language of 39-16-201(b)(2) refers to materials prohibited in subdivision (a)(1). However, since subdivision (a)(1) does not exist, and in order to derive logical meaning from the language of that provision, it must be read as subdivision (b)(1). 5
Annotated 39-16-201, and supports the Department s argument that the Grievant could have been prosecuted for the felony described in Tennessee Code Annotated 39-16-201. That is all that is required to establish Gross Misconduct, as defined in Rule 1120-1-.01 (42), TENN. COMP. R. & REGS. It is therefore concluded that the Department has established that the Grievant engaged in Gross Misconduct, as that term is defined by law. 6. The Grievant next challenged the appropriateness of the sanction imposed for his conduct. A State employee may be disciplined for (1) causes relating to performance of duty, or (2) causes relating to conduct which may affect an employee s ability to successfully fulfill the requirements of the job. Rule 1120-10-.05, TENN. COMP. R. & REGS. A career employee may be warned, suspended, demoted or dismissed by his appointing authority whenever just or legal cause exists. The degree and kind of action is at the discretion of the appointing authority... Rule 1120-10-.02, TENN. COMP. R. & REGS. Although the law prescribes implementation of progressive discipline for State employees, it also provides that disciplinary action must be administered at the step which is most appropriate for the misconduct. (See, Tennessee Code Annotated 8-30- 330; and Rule 1120-10-.07, TENN. COMP. R. & REGS.) As the courts have recognized in other cases dealing with these provisions,... the key word in the statute is appropriate.... (T)he language of these provisions does not mandate application of discipline in a routine fashion without regard to the nature or severity of the behavior it is intended to address. The supervisor has discretion to determine what punishment fits the offense. Berning v. State, 996 S.W.2d 828, 830 (Tenn. App. 1999). 7. The Grievant had been employed by the State for slightly more than two years at the time of this incident, and had enjoyed both a cordial and productive tenure, receiving high marks on his performance evaluations and the verbal support of his peers during the hearing, all of which weighs in his favor. However, the criminal nature of his conduct on May 26, 2006, and the negative impact it had on the Grievant s relationship with his superiors, cannot be discounted. Warden Parker testified that, when something of this nature occurs in a prison setting, it quickly becomes common knowledge among the 6
inmates as well as the staff. Both Warden Parker and Captain Carol said that they could not work with the Grievant if he were to return to work. Warden Parker felt especially strongly about that, stating that as a result of such an incident, you lose your integrity as a correctional professional. You lose your integrity not only with the staff, but also with the inmates, and your effectiveness is basically gone. 5 8. When the Warden and Commissioner considered the issue of punishment in this case, they had a wide range of options at their disposal. (See, Rule 1120-10-.07, TENN. COMP. R. & REGS.) Dismissal from employment is one of those options. Rule 1120-10-.07(5), TENN. COMP. R. & REGS. Pursuant to that regulation, After minimum due process is provided, an employee may be dismissed by the appointing authority from his position for unacceptable conduct or performance of duties. Rule 1120-10-.07(5)(a), TENN. COMP. R. & REGS. Without a doubt, the Grievant s conduct was unacceptable, and warranted a significant sanction. The Grievant was employed as a Correctional Officer, a position of significant responsibility that requires adherence to a high standard of conduct, and must command the respect and confidence of not only his peers and his superiors, but also the inmates whom he supervises on a daily basis. Physical security inside penal institutions is a matter of utmost concern; the surreptitious introduction of a knife into a prison by anyone is a serious matter, given its attendant deadly potential. Such an action by a prison guard, charged with the responsibility to maintain safety, order and discipline inside the facility, is inexcusable. In this case, the egregious nature of the Grievant s action, the potential harm that could have resulted, the administration s inherent loss of confidence in and respect for the Grievant s judgment, and the negative impact of his conduct on the Department s mission, all weigh heavily in favor of dismissal from employment as the appropriate sanction. The courts have held that, when an employee s conduct results in loss of effectiveness in his job, or adversely affects his Department s ability to perform its mission, such a negative impact:... may in proper cases justify or require the discharge of public employees when their efficiency or usefulness in their positions has been seriously impaired by their own fault, by the fault of others, or by blameless misfortune. 5 Hearing Transcript: Page 85, Line 1. 7
Reece vs. Tennessee Civil Service Commission, 699 S.W.2d 808, 813 (Tenn. App. 1985) 9. The issues presented for consideration in this case are (1) whether the Department has proven, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited by the laws of this State and The Rules of the Tennessee Department of Personnel; and (2) if so, whether the disciplinary sanction imposed by the Commissioner was appropriate. With respect to both issues, the Department has met its burden of proof. Although the Department offered no proof in support of its allegation related to violation of TDOC Policy & Procedures #302.08, Code of Conduct/Oath of Correctional Employee in State Service, the evidence presented during the hearing amply supported the other allegations of wrongdoing, and established a compelling argument in favor of termination of the Grievant s employment with the Department. Accordingly, IT IS HEREBY DETERMINED AND ORDERED that the Tennessee Department of Correction has met its burden of proof, and has established by a preponderance of the evidence that the Grievant, Doyle Witcher, engaged in conduct prohibited by the laws of this State and The Rules of the Tennessee Department of Personnel. IT IS FURTHER DETERMINED AND ORDERED that the Grievant s dismissal from State employment, imposed as a disciplinary sanction, is appropriate, and warranted by his conduct on May 26, 2006, and is therefore Upheld. AND, IT IS FINALLY ORDERED that the Grievant s appeal of the Commissioner s decision to terminate his State employment is hereby DISMISSED. Entered and effective this 2nd day of October, 2007. J. Randall LaFevor, Administrative Judge 8
Filed in the Administrative Procedures Division, Office of the Secretary of State, this 2nd day of October, 2007. Thomas G. Stovall, Director Administrative Procedures Division 9